“The assignment reflected that the mortgage was transferred to HSBC Bank “on or before” April 3, 2007; however, the assignment was executed on October 9, 2008, and notarized on October 10, 2008.”
DAVID J. SANDORO,
HSBC BANK, USA NATIONAL
ASSOCIATION, AS TRUSTEE FOR
WELLS FARGO HOME EQUITY ASSET
BACKED CERTIFICATES, SERIES
But wait, there’s more…
On April 10, 2007, Wells Fargo Bank, N.A. (Wells Fargo), filed an unverified complaint against Mr. Sandoro seeking to foreclose a mortgage on real property. Mr. Sandoro did not answer the complaint. Instead, he filed a motion to dismiss based on Wells Fargo’s failure to attach a notice of acceleration and the promissory note to the complaint. While Mr. Sandoro’s motion to dismiss was pending, Wells Fargo filed a motion for summary judgment. Mr. Sandoro filed an affidavit in opposition to Wells Fargo’s motion, contending, among other things, that Wells Fargo failed to satisfy the condition precedent of providing a notice of acceleration. Mr. Sandoro also noted that his motion to dismiss had not yet been resolved. The trial court denied Wells Fargo’s motion for summary judgment. Wells Fargo then filed a written response to Mr. Sandoro’s motion to dismiss, claiming that a notice of acceleration had been sent on November 17, 2006. Wells Fargo did not provide any proof of mailing, however, and the copy of the notice of acceleration attached to Wells Fargo’s response was dated February 5, 2007.
Wells Fargo subsequently filed a motion to substitute HSBC Bank as the plaintiff. After the motion was granted, Mr. Sandoro filed an affidavit challenging HSBC Bank’s standing to foreclose the mortgage. In response, HSBC Bank filed a copy of the purported assignment of mortgage. The assignment reflected that the mortgage was transferred to HSBC Bank “on or before” April 3, 2007; however, the assignment was executed on October 9, 2008, and notarized on October 10, 2008. HSBC Bank then filed a motion for summary judgment, which was granted after a hearing.
Here, the record reflected genuine issues of material fact regarding the purported assignment of mortgage and whether Mr. Sandoro had been provided with a notice of acceleration. Therefore, the trial court erred in granting HSBC Bank’s motion for summary judgment and we reverse and remand for further proceedings.
Reversed and remanded for further proceedings.
Full opinion below…